Alvarez v. Madden

Filing 45

ORDER Denying 44 Motion for Reconsideration signed by District Judge Dale A. Drozd on 10/17/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE DAVID ALVAREZ,

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Petitioner,

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v.

No. 1:17-cv-00546-DAD-JLT (HC)

ORDER DENYING MOTION FOR
RECONSIDERATION

RAYMOND MADDEN,
(Doc. No. 44)

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Respondent.

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Petitioner is a state prisoner proceeding pro se and in propria persona with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On June 7, 2018, the court issued an order denying the petition on the merits. (Doc. No.

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42.) On June 25, 2018, petitioner moved for rehearing pursuant to Federal Rule of Appellate

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Procedure 40(a) in this court. (Doc. No. 44.) Rule 40(a) is inapplicable here since the Federal

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Rules of Appellate Procedure govern procedure in the federal courts of appeals. Petitioner

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appears to be requesting reconsideration of the court’s order denying his petition for federal

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habeas relief. Therefore, the court will construe the motion as one for reconsideration pursuant to

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Federal Rule of Civil Procedure 60(b). To the extent petitioner wishes to seek appellate review of

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this court’s decision, he must file a notice of appeal (see Federal Rule of Appellate Procedure

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4(a)(1) and seek review by the Ninth Circuit Court of Appeals.

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Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. Rule 60(b) permits a district court to relieve a party from a final order or judgment

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on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

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evidence . . .; (3) fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has

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been satisfied . . . or (6) any other reason justifying relief from the operation of the judgment.”

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Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made within a reasonable time, in any

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event “not more than one year after the judgment, order, or proceeding was entered or taken.” Id.

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Moreover, when filing a motion for reconsideration, Local Rule 230(j) requires a party to
show the “new or different facts or circumstances claimed to exist which did not exist or were not

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shown upon such prior motion, or what other grounds exist for the motion.” Motions to

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reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825

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F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To

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succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to

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reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp.

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656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th

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Cir. 1987).

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Here, petitioner fails to meet the requirements for granting a motion for reconsideration.

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Petitioner has not shown “mistake, inadvertence, surprise, or excusable neglect;” he has not

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shown the existence of either newly discovered evidence or fraud; he has not established that the

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judgment is either void or satisfied; and he has not presented any other reasons justifying relief

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from judgment. Moreover, pursuant to the court’s Local Rules, petitioner has not shown “new or

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different facts or circumstances claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion.” Local Rule 230(j).

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Rather than make the required showing, petitioner attempts to raise a new claim, alleging

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that the testimony of the victim at his trial violated his Fifth Amendment right against double

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jeopardy. (Doc. No. 44 at 2–3.) A motion for reconsideration is not the proper place to raise new

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and additional claims. The instant action has been concluded in this court; therefore, petitioner

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must instead file a second or successive petition if he wishes to present a new claim for federal
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habeas relief. However, petition is forewarned that the district court is without jurisdiction to act

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on a second or successive petition without petitioner having previously obtained authorization to

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commence such action from the court of appeal. See 28 U.S.C. § 2244(b)(3)(A). Moreover, any

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new claim presented in a second or successive petition would be subject to dismissal unless the

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petitioner is able to show that the claim relies on a new rule of constitutional law made retroactive

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to cases on collateral review by the Supreme Court, or the factual predicate for the claim could

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not have been discovered previously through the exercise of due diligence. See 28 U.S.C. §

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2244(b)(2). In this case, the petitioner does not cite a new rule of constitutional law, or raise facts

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that could not have been previously discovered through the exercise of due diligence. Rather, the

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new claim relies on the same double jeopardy principles raised in petitioner’s other claims

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concerning other witnesses who testified at his trial. Petitioner’s motion for reconsideration (Doc.

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No. 44) will therefore be denied.

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IT IS SO ORDERED.

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Dated:

October 17, 2018
UNITED STATES DISTRICT JUDGE

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